69 Wis. 637 | Wis. | 1887
The appellant filed his petition in the county court of Grant county, setting forth the following facts, viz.: One Wesley Grow died intestate October 8, 1883, leaving his widow, Mahala Crow, and adult children, Charles M. Grow, Arabella Crow, Leroy W. Crow, Ladora Crow, Albert Crow, and Celia Crow. The respondent was appointed administrator, and made an inventory of the personal property appraised at $671.20, and allowance to the widow, $200. On March 20, 1884, the administrator, under an order of the court, sold all the personal propertj^ applicable to the payment of the debts, for $408.20. Commissioners appointed for that purpose allowed unsecured claims of $S24.08. On the 28th day of January, 1879, the said Wesley Crow, deceased, and his wife mortgaged all the land the deceased owned at the time and when he died, of certain description, situated in said county, valued at the sum of $3,200, to Nelson Y. A. Crow, the appellant, for the sum of $2,155 borrowed money, with interest at ten per cent., none of which has ever been paid. The land is worth much less than the amount of the mortgage debt and interest, and on the 8th
The prayer is that the administrator account, pay over said $40, if not necessary to pay expenses of administration, deliver possession of said land to the petitioner, and sell or lease the same for the payment of such indebtedness, subject to said mortgage. The county court ordered the administrator to surrender to the petitioner the dower of said widow, when admeasured, and that he sell or mortgage the remainder on the best possible terras, for the benefit of the common creditors. In compliance with said order the said administrator leased the same. The petitioner appealed from said order to the circuit court. The circuit court affirmed that part of the order that directs the administrator to surrender the widow’s dower interest in the land to the petitioner, and as to all other matters ordered that the appeal be dismissed for want of jurisdiction in the county court.
The appellant assigns as error: (1) That the circuit court ■made no order for the distribution of the money now in the hands of the administrator, nor directed the county court to do so. (2) That the circuit court did not order the administrator to procure a license to sell said real estate, or to surrender the possession of said land to the petitioner, or direct the administrator to pay the petitioner the interest on his mortgage debt.
As to the failure of the county court to order the administrator to sell the land subject to the mortgage, the same want of jurisdiction exists. That court knows nothing of the mortgagee, for he has not proved his claim as a creditor of the estate. The conditions upon which the land can be sold to pay debts are specifically prescribed in ch. 167, E. S., and there is no jurisdiction in the county court of that matter, outside of the statute. If the county court had clear jurisdiction in the matters, as claimed by the petitioner, it certainly ought not to have put this insolvent estate to the expense of selling the land, when it is absolutely certain that it could not have been sold at such price as would more than pay the mortgage debt. According to the petition, neither the estate,, the creditors, nor the administrator, the widow, nor the heirs, nor any one except the petitioner himself, has any interest in such a sale, except to pay the expenses, or would in any respect be benefited by it. It is too plain for argument that the petitioner’s only remedy in respect to his mortgage or mortgage interests must be sought by foreclosure or some proper proceeding in the circuit court. He is certainly an intruder in the county court as to the matters he complains of. The circuit court proceeded sufficiently far in the order made, and very properly dismissed the appeal as to all other matters.
By the Court. — The judgment of the circuit court is affirmed.